The Alien Land Laws: A Reappraisal

Source: The Yale Law Journal , Jun., 1947, Vol. 56, No. 6 (Jun., 1947), pp. 1017-1036
Published by: The Yale Law Journal Company, Inc.

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19471 THE ALIEN LAND LAWS: A REAPPRAISAL 1021

Anti-Japanese sentiment, dormant during World War I, acqu

vitality shortly afterwards28 and inspired a new California law
Initiative, 9which became the archetype for land acts passed t
other western states.30 The Act provided that all aliens eligibl
ship under federal law might "acquire, possess, enjoy, transmi
real property, or any interest therein" in the same manner as
Other (i.e. ineligible) aliens32 and corporations with a majority
alien stockholders33 might be accorded identical rights only if
by treaty.33a Nor could an ineligible alien become guardian for
zen's estate in land.34
Property acquired in violation of the Act, or by colorable tr
intent to evade the law,35 was subjected to escheat in proceeding
the Attorney General or county attorney.36 In such proceedings
cie presumption of intent to evade was to arise upon proof of paym
sideration by the alien, registration of title in the name of an al
corporation, or execution of a mortgage in favor of an ineligible ali
sequently took possession, control, or management.37 However
obtained by enforcement of a lien or mortgage or in good faith
debt was exempted from the Act's prohibitions, but the land w
posed of within two years.38 Conspiracy to effect a transfer v
Act was made criminally punishable.39 Systematic enforcement of t
delayed until its constitutionality had been determined three years
United States Supreme Court.40

28. TOLAN REPORT 81-2; Buell, supra note 26, at 65.

29. Alien Property Initiative Act of 1920 Cal. Stats. 1921, p. lxxxiii.
on events surrounding passage of this act, TOLAN REPORT 84-6, MCWILLIAM
57-66; PAJUS, THE REAL JAPANESE CALIFORNIA 91-100 (1937). For the
rary opposing points of view compare CALIFORNIA STATE BOARD OF CONTRO
AND THE ORIENTAL (1920) with AMERICAN COMMITTEE OF JUSTICE, CA
THE JAPANESE: ARGUMENTS AGAINST THE ALIEN LAND LAW (1920).
30. TOLAN REPORT 86; KONVITZ, op. cit. supra note 2, at 161.
31. CAL. GEN. LAWS (Deering 1944) Act 261, § 1.
32. Id. § 2.
33. Id. § 3.
33a. This proviso, in conjunction with the Japanese-American treaty of 1911, in effect
meant that Japanese aliens were precluded only from holding agricultural land. See note
128, infra, and related text.
34. Id. § 4. This section was intended to foreclose an obvious loophole in the law,
since each Japanese alien with an American born child had at hand a potential landowner
whose estate would need guardianship.
35. Id. § 9.
36. Id. § 7.
37. Id. § 9.
38. Id. § 7.
39. Id. § 10.
40. In Terrace v. Thompson, 263 U.S. 197 (1923). See MCWILLIAMS, PREJUDICE 64
There had been considerable doubt expressed whether the laws were constitutional and th

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1022 THE YALE LAW JOURNAL [Vol. 56: 1017

The Oregon Alien Land Law, adopted in 1923,41 followed th

Act of 1920 almost verbatim and the Washington law,42 thou
form and couched in somewhat more positive language, had ba
effect. The only notable provisions missing from the Washi
those relating to conspiracy and to the presumption of intent to e
The First Court Tests. Constitutional validation of west coast alien land
legislation came in 1923 when the Supreme Court upheld the Washington la
in Terrace v. Thompson.43 In this case the citizen-owner of agricultural lan
sought an injunction to restrain enforcement of the alien land law agains
himself and his ineligible alien lessee. In affirming dismissal of the bill th
Court, through Mr. Justice Butler, restated the proposition that, in the ab
sence of a treaty, a state has power to deny all aliens the right to own land and
is free also to make classifications based on declaration of intention to be-
come citizens.44 The fact that the lessee was of a race ineligible for citizen-
ship under federal law was held not of itself enough to render such a classifi-
cation arbitrary, unreasonable, or a denial of equal protection, since a state
might well assume that Congress had acted reasonably in setting up classifica-
tions for naturalization.45 The court felt also that the Washington act did not
contravene any portion of the 1911 treaty with Japan since reciprocal right to
ownership of agricultural land was specifically omitted from the treaty.46
The California law was held constitutional on the same day in the compan-
ion case of Porterfield v. Webb47 on the basis of the Terrace decision. Two
cases decided a few days later also involved the California law. In Frick v.
Webb48 the court upheld Section 3 of the Initiative Act which prohibited in-
eligible aliens from owning stock in a landholding corporation, and in Webb
v. O'Brien49 the court determined that a "cropping contract" gave an alien

decision of the Supreme Court upholding them was surprising to many. See Ibid.; and
see Collins, Will the California Alien Land Law Stand the Test of the Fourteenth Amend-
ment? 23 YALE L. J. 330 (1914).
41. Ore. Laws, 1923, ch. 98, §§ 1-10, ORE. COMP. LAWS ANN. §§61-101-11 (1940).
42. Wash. Laws, 1921, Ch. 50, §§ 1-11, WASH. REV. STAT. §§ 10581-92 (Remington
1932). The Washington land law is framed to prohibit only those who have not in good
faith declared their intention of becoming a citizen. Since alien Japanese, ineligible to
become citizens, may not file declarations of intention, the law has the same ultimate ef-
fect.
43. 263 U.S. 197 (1923).
44. Id. at 219.
45. The real basis of Mr. Justice Butler's opinion lay, submittedly, in the legalist
trick of assuming his conclusion. He wrote: "The quality and allegiance of those w
own, occupy and use the farm lands within its borders are matters of highest importan
and affect the safety and power of the state itself." Id. at 221. No showing had been ma
nor proof elicited that the quality and allegiance of the Japanese alien farmer was eith
inferior to or different from that of the native "white." See Cohen, Book Review,
YALE L. J. 910,911 (1947).
46. 263 U.S. 197, 222 (1923).
47. 263 U.S. 225 (1923).
48. 263 U.S. 326 (1923).
49. 263 U.S. 313 (1923).

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1947] THE ALIEN LAND LAWS: A REAPPRAISAL 1023

such an interest in the land as to be violative of the Act, alth

the California supreme court had ruled to the contrary.6
Developments 1923-1941. The California legislatures, in the
after the Supreme Court's capitulation to legalized discrimin
the Act so as to broaden the scope of the prohibitions: to the
eligible aliens to acquire, possess, enjoy, transmit, and inherit
to "use, cultivate, occupy, and transfer," and to have "in whol
beneficial use of real property."51 Cropping contracts were
cluded as an "interest" in land.2 Difficulty experienced by th
ing alienage was obviated by a 1927 procedural statute declari
action under the alien land laws the burden of proving citiz
bility, after proof of "interest in the land" and mere allegation o
shifted to the defendant.53 An amendment provided also that
bership in an ineligible race along with proof of an "interest"
a prima facie presumption of ineligibility after which the bur
the defendant to prove citizenship or eligibility.54 The guardians
the 1920 Act had been declared unconstitutional by the Cali
court,55 and in its stead was substituted a section permitting a ci
an ineligible alien to name his father as guardian, but imposi
tions on the guardian's conduct.n6
After Terrace v. Thompson and its consorts, the constitut
alien land laws was apparently deemed unassailable;67 litigat
ensuing years dealt only with collateral sections and anci
clearly controlled by the Supreme Court decisions. A guardi
similar to that invalidated by the California court was held c
Washington,58 although Washington courts have generally been m
than those of California to find intent to evade the land laws in the absence of
clear and convincing proof.59 The California presumption statutes have gen-

50. Ex parte Okahara, 191 Cal. 353, 216 Pac. 614 (1923).
51. Cal. Stats., 1923, c. 441, pp. 1020-1.
52. Id. at p. 1023. "Cropping Contracts" conventionally allow the alien possession as
an independent contractor with complete control of cultivation, harvesting, handling and
delivering the crop, enjoying unlimited discretion as to hours and wages in return for a
percentage (usually one-half) of the net proceeds of sale. See Dudley v. Lowell, 201 Cal.
376, 377-8, 257 Pac. 57, 58 (1927).
53. Cal. Stats. 1927, ch. 528, p. 881, CAL. GEN. LAWS Act 261, §9a (Deering 1944).
54. Ibid. CAL. GEN. LAWS ACT 261, § 9b (Deering, 1944).
55. Estate of Yano, 188 Cal. 645, 206 Pac. 995 (1922).
56. Cal. Stats., 1923, c. 441, p. 1021, CAL. GEN. LAWS Act 261, § 4 (Deering 1944).
57. For analysis and criticism of the Supreme Court decisions see Powell, Alien Land
Cases in the United States Supreme Court 12 CALIF. L. REV. 259 (1924).
58. In re Fujimoto's Guardianship, 130 Wash. 188, 226 Pac. 505 (1924).
59. See State v. Kosai, 133 Wash. 442, 451-2, 234 Pac. 5, 9 (1925) (land allegedly
held in trust for alien, court said fraud is never presumed); State v. Kurita, 136 Wash.
426, 430, 240 Pac., 554, 555 (1925) (question of a dummy corporation; no direct evidence,
though inferences were strong); State v. Natsuhara, 136 Wash. 437, 444, 240 Pac. 557,
560 (1925) (law not meant to apply to leases for "reasonable" length of time); State v.

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1024 THE YALE LAW JOURNAL [Vol. 56: 1017

erally been upheld,0° but, as applied to a criminal land holding ca

facie presumption of alienage on proof of membership in an i
was declared a denial of due process.61 Ownership of non-agric
on the other hand, has been universally held not to contravene the
Despite the explicit language of the statutes and the judicial im
constitutionality, agricultural land continued to be held by and
aliens during the years between the adoption of the California
and the outbreak of the war with Japan. Difficulties of investi
apathy and the ingenuity of clever counsel combined to render
laws ineffectual, if not a dead letter.63 The courts themselves
winked at devices clearly designed to avoid the stringency of the law
Recent enforcement legislation. In California enabling amend
passed in 1943 giving the Attorney General declaratory and inju
edies in actions under the Act and giving public documents prim
on questions of eligibility for citizenship.65 A significant substa
ment was also added, prohibiting any person from entering into
to transfer an interest in land (including leases and cropping co
wife or child of an ineligible alien or to any one planning to hol
ineligible alien if the person entering into the agreement knew
alien was to be permitted to "go upon the land," farm, cultivate
beneficial use thereof. If such an agreement is made, and subs
ineligible alien does in fact "go upon the land," the person ente
agreement is guilty of a violation of the act and subject to punishm
In 1945 Oregon also enacted this provision67 and passed, in ad

McGonigle, 144 Wash. 252, 260, 253 Pac. 655, 656-7 (1927) (defendant took
for use of alien; plaintiff's information insufficient and defective).
60. People v. Osaki, 209 Cal. 169, 286 Pac. 1025 (1930), 3 So. CALIF.
44 HARV. L. REV. 121.
61. Morrison v. California, 291 U.S. 82, 94 (1934).
62. Jordan v. Tashiro, 278 U.S. 123 (1928), 2 So. CALIF. L. REV. 298 (Japa-
nese Hospital); Gonzalez v. Ito, 12 Cal. App. 2d, 124, 55 P. 2d 262 (1936) (garage build-
ing and lot); Palermo v. Stockton Theatres, 76 Adv. Cal. App. 442, 172 P. 2d 103 (1946)
(motion picture theatre). All these decisions opined that the issue was concluded by the
provision in the 1911 Treaty with Japan which granted reciprocal rights to nationals to
engage in "trade or commerce." 37 STAT. 1504.
63. See, generally, as to their ineffectiveness TOLAN REPORT, 78, 86; STRONG, THE
SECOND GENERATION JAPANESE PROBLEM 211-2 (1934); KONVITZ, op. cit. supra note 2, at
167; MCWILLIAMS, PREJUDICE, 65; Note 6 WASH. L. REV. 127 (1931).
64. People v. Fujita, 215 Cal. 166, 8 P. 2d 1011 (1932) (payment of purchase price
and subsequent moving on land held not to violate land laws); Takiguchi v. Arizona, 47
Ariz. 302, 55 P. 2d 802 (1936) (Injunction not proper remedy to enforce compliance).
See 6 WASH. L. REV. 127 (1931).
65. Cal. Stats. 1943, ch. 1059, §§ 4-6, 8, CAL. GEN. LAWS Act 261 §§ lOb-c, 12a (Deer-
ing, 1944). Public documents include certified copies of records, files, and documents of
any public body, authority department, bureau, and agency, or entries, records, and files
made by a public officer or employee in performance of his duty. Ibid.
66. Cal. Stats. 1943, ch. 1059, § 7, CAL. GEN. LAWS Act 261, § lla (Deering, 1944).
67. Ore. Laws, 1945, ch. 436, § 5; ORE. COMP. LAWS ANN. § 61-201, (Supp. 1944-5).

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1947] THE ALIEN LAND LAWS: A REAPPRAISAL 1025

procedural statutes :68 a presumption of ineligibility statute similar

California section; a provision wherein proof by the state that t
not a registered voter in the county wherein the land was loca
prima facie presumption that he was ineligible for citizenship; a
declaring that an ineligible alien who tills, farms, or works any
presumed69 to be the owner of a leasehold or some interest in t
the west coast states Washington alone failed to tighten its alie
during the war.
The recent exhumation and renewed enforcement of the west coast alien
land laws represent a recrudescence of prejudice hardly to be condoned. Not-
withstanding Terrace v. Thompson, it is believed that direct constitutional at
tack is not foreclosed. A different judicial climate of opinion and changed
circumstances on the coast may render the legislation offensive both to the
Fourteenth Amendment and to the exclusive power of Congress over the
"federal fields."

STATE CONTROL AND THE FOURTEENTH AMENDMENT

Conventional doctrine accords the state complete power to regulate owner-

ship, descent, and use of land within its borders, except where limited by the
federal constitution.70 Accordingly, state exercise of the sovereign power to
prohibit all aliens from owning land has been generally affirmed.71 The
Fourteenth Amendment however imposes limitations on the unbridled power
of the state over persons and property. The due process and equal protection
clauses unlike the privileges and immunities clause, are available to "persons,"
as well as citizens and include aliens-eligible, ineligible, and (possibly)
enemy.72 To protect the individual's liberty and property from arbitrary and
discriminatory class legislation has been considered the functional justification
for these two clauses.73 Accordingly, judicial attacks on the Pacific Coast
alien land laws might well proceed under the aegis of the Fourteenth Amend-
ment.

Classification and the Equal Protection Clause. Most manifest today would
seem the conflict of the alien land laws with the equal protection clause.
"Equal protection," concededly, does not bar the possibility of classification.74
68. Ore. Laws, 1945, ch. 436, §§ 2-4, ORE. COMP. LAWS ANN. §§61-202-4 (Supp.
1944-5).
69. Nothing in the language of the statute indicates whether this presumption shall
be conclusive or rebuttable. To regard it as conclusive would seem clearly a denial of
procedural due process, and even to give it only prima facie effect would seem to transcend
the bounds of reasonableness. See discussion p. 1032 infra.
70. United States v. Fox, 94 U.S. 315, 320-1 (1876).
71. Toop v. Ulysses Land Co., 237 U.S. 580, 582-3 (1915). See Mager v. Grimm 8
How. 490, 493 (U.S. 1850); Hauenstein v. Lynham, 100 U.S. 483, (1879); FREUND,
POLICE POWER § 706 (1904) ; 72 U. OF PA. L. REv. 148, 151 (1924).
72. 16 STAT. 140 (1870), 8 U.S.C.A. § 41 (1942); Yick Wo v. Hopkins, 118 U.S. 356
(1886).
73. FREUND, POLICE POWER § 134 (1904).
74. Id. at §§ 610, 682, 721-5.

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1026 THE YALE LAW JOURNAL [Vol. 56: 1017

A state, upon ascertaining an evil which is within its power t

in the interest of the public weal, project legislation against
sonably finds to be the cause of that evil.75 The traditional to
existence of a reasonable relation between the condition to be remedied and
the subjects of the classification.76
The distinction between "alien" and "citizen" has been upheld by courts as
a reasonable classification for state legislation regulating ownership of land,77
the right to hold public office,78 licensing of hunting and fishing,79 possession
of firearms,80 and the privilege of operating a billiard hall.81 In all these
instances, however, the classification embraced all aliens; where a class within
a class had been created,82 the courts have walked warily. A California
statute prohibiting aliens ineligible to become electors from fishing in certain
streams was held to deny them equal protection of the laws,83 and the Califor-
nia prohibition against ineligible alien guardianship was invalidated for the
same reason.84 Nor have courts been reluctant to notice the effect rather than
the mere language of a statute in striking down laws based on arbitrary dis-
criminations. A San Francisco ordinance, innocent enough on its face, requir-
ing operators of frame-house laundries to obtain approval of the Board of
Commissioners was declared a discrimination based on "race" and a denial
of equal protection since its impact was felt only by Chinese laundry opera-
tors, who alone were the owners of frame establishments.85 A Board of
Health requirement that all male inmates of a city jail have their hair clipped,
allegedly a sanitary regulation, was held unconstitutional because its designed

75. Patsone v. Pennsylvania, 232 U.S. 138, 144 (1914).

76. FREUND, POLICE POWER § 612; See 17 N.Y.U.L.Q. REV. 242, 245, 248 (1940).
77. See cases cited note 71 supra; 5 VERNIER, op. cit. supra note 18 at 304-38. GIBSON,
op. cit. supra note 2 at 45-61.
78. Ore. Laws, 1923 ch. 121. See generally MEARS, op. cit. supra note 18, at 330-1.
Similarly a state statute prohibiting contractors from employing aliens on public works
has been upheld. Heim v. McCall, 239 U.S. 175 (1915). But see Powell, The Right to
Work for the State, 16 COL. L. REV. 99 (1916).
79. McCready v. Virginia, 94 U.S. 391 (1876); Patsone v. Pennsylvania, 232 U.S.
138 (1914). See, for criticism of these two cases, KONVITZ, op. cit. supra note 2, at 212-8.
See generally on hunting and fishing restrictions MEARS, op. cit. supra note 18, at 218-37.
80. Patsone v. Pennsylvania, 232 U.S. 138 (1914).
81. Clarke v. Deckebach, 274 U.S. 392 (1927). For tabular presentation of legisla-
tion restricting occupations open to aliens see KONVITZ, op. cit. supra note 2, at 190-211.
See generally 5 VERNIER, op. cit. supra note 18, at 389-401; O'Connor, Constitutional Pro-
tection of the Aliens Right to Work, 18 N.Y.U.L.Q. REV. 483 (1941); Branse, State
Laws Barring Aliens from Professions and Occupations 3 IMMIG. AND NAT. SOR. Mo.
REV., 281 (1946); 17 N.Y.U.L.Q. REV. 242 (1940).
82. Indeed it has been suggested that a class within a class within a class has been
created in the case of persons subject to the disabilities of the land laws: aliens generally,
aliens ineligible for citizenship, and aliens ineligible for citizenship but given the right to
hold land by treaty. MEARS, op. cit. supra note 18 at 167.
83. In re Ah Chong, 2 Fed. 733 (C.C.D. Cal. 1880).
84. Estate of Yano, 188 Cal. 645, 206 Pac. 995 (1922).
85. Yick Wo. v. Hopkins, 118 U.S. 356 (1886).

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1947] THE ALIEN LAND LAWS: A REAPPRAISAL 1027

effect was to expose Chinese prisoners, shorn of their queues, t

and disgrace among their countrymen;86 Mr. Justice Field
language87 proclaimed the duty of the Court to invalidate88 atte
off the inhibition of the equal protection clause.
No less unreasonable and arbitrary is the basis for classificatio
by the alien land laws: i.e. eligibility for citizenship. The fact th
have adopted a federal naturalization standard has weighed heav
courts on the theory that it is reasonable for the state to adopt a cl
employed by Congress.89 On further analysis, however, this ra
unconvincing and superficial. Assuming that the congressional c
based on "race" is reasonable for the purpose of the naturalizati
does not necessarily follow that it is equally reasonable when app
state legislatures for the purpose of controlling land ownership.91
A state statute declaring Japanese resident aliens ineligible t
would seem clearly violative of the equal protection clause. To
very same result couched in the language of the alien land laws,
verbalisms. The discriminatory nature of the classification was h
1943 when Chinese were permitted to become citizens.9 By the
Chinese are now eligible to own land in the Pacific coast states.93

86. Ho Ah Kow v. Nunan, 12 Fed. Cas. 252 (C.C.D. Cal. 1879). The fe
his queue was calculated to provide assurance that the Chinese would pa
also Truax v. Raich, 239 U.S. 33 (1915) where the Supreme Court invali
zona statute making it a misdemeanor for an employer not to employ 80
ployees who were United States citizens.
87. "Probably the bastinado, or the knout, or the thumbscrew, or the r
complish the same end; and no doubt the Chinaman would prefer either of
torture to that which entails upon him disgrace among his countrym
Kow v. Nunan, 12 Fed. Cas. 252, 255 (C.C.D. Cal. 1879) ". . . we cannot
to matters of public notoriety and general cognizance. When we take our
bench we are not struck with blindness, and forbidden to know as judges
men..." Ibid.
88. "Against such legislation it will always be the duty of the judiciary
enforce the paramount law of the nation." Id. at 257.
89. Terrace v. Thompson, 263 U.S. 197, 220 (1923); Porterfield and
Webb, 279 Fed. 114, 116 (S.D. Cal. 1921). See also Comment, 31 YALE L
(1922).
90. This assumption is open to serious question. See text and authorit
infra.
91. Congress, furthermore, since it is not subject to an "equal protection" clause, since
its power over naturalization is "exclusive," and since it may deny the privilege of citizen-
ship with or without reason, has a latitude not accorded the states. See KONVITZ, op. cit.
supra note 2 at 165-6; see also Comment, 10 CALIF. L. REV. 241, 245 (1922).
92. 57 Stat. 601 (1943), 8 U.S.C.A. § 703 (Supp. 1946). In 1946 eligibility restric-
tions were similarly removed from Filipinos and peoples indigenous to India. 60 STAT.
416 (1946), 8 U.S.C.A. § 703 (Supp. 1946). See Carusi, Racial Bars Removed for Fili-
pinos and East Indians, 4 IMMIG. AND NAT. SER Mo. REV. 1 (1946).
93. See Weinstok and Landels, Right of Chinese Aliens to Take Title to Land, 19
CALIF. S.B.J. 19 (1944); KONVITZ, op. cit. supra note 2, at 167.

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1028 THE YALE LAW JOURNAL [Vol. 56: 1017

Attempts to justify the reasonableness of the classification

tably unsubstantial and non-persuasive. It was said that "
realm of possibility that every foot of land within the state, mig
ownership or possession of a non-citizen."94 Whatever validit
may have had when uttered, it flies in the face of reality t
cessation of authorized Japanese immigration in 1924,95 the
nese population has become preponderantly-and increasingly
In 1940 there were 47,305 Japanese aliens (i.e., foreign born
with 79,642 born in this country,6 the number of foreign
having decreased 36% since 1920,97 and more than half of the
years old.98 Agricultural statistics are similarly fatal to the
domination. In 1941, Japanese-alien and citizen-operated onl
total number of farms in California, 1% in Washington,
Oregon.99 Of the total cropland they harvested but 2.9%
0.33% in Washington, and 0.3% in Oregon.10l However, their
has been out of all proportion to their relatively small holdings;
the west coast truck crops were produced on Japanese operated t
Animosity against the Japanese farmer doubtless arose in par
that, through intelligence and industry, he outstripped his "whit
in the techniques of efficient farming.102 It seems anomal
discourage such efficiency by means of prohibitory land legi
suming there are elements of unfair competition among the a
ers, the state and the trade unions have at their disposal meth

94. Terrace v. Thompson, 274 Fed. 841, 849 (W.D. Wash. 1921) qu
proval by Mr. Justice Butler in Terrace v. Thompson, 263 U.S. 197, 22
95. The Japanese Exclusion Act closed the doors to Japanese immi
161 (1924),8 U.S.C.A. § 213 c (1942).
96. This amounts to 62.7% citizen and 37.3% alien. II CHARACTER
POPULATION: PART 1, 16th Census, 1940, 21. For statistical studies of
population see STRONG, op. cit. supra note 63, at 152-66; ICHIHASHI, J
UNITED STATES, 94-105 (1932); PAJUS, op. cit. supra note 29, at 155-6
97. II CHARACTERISTICS OF THE POPULATION: PART 1, 16th Census,
98. TOLAN REPORT, 91.
99. TOLAN REPORT, 117, 131, 135. In 1940 there were 5,135 Japanes
in California, 706 in Washington and 277 in Oregon. Ibid. Of the total
were tenant farmers. Ibid.
100. Ibid. Certain areas, however, have much higher percentages of Japanese har-
vested cropland. Ibid. See also on Japanese-American agriculture, Poll and Engstrand,
Japanese Agriculture on the Pacific Coast, 21 J. LAND AND PUB. UTIL. ECON. 352, 353, 356
(1945); MEARS, op. cit. supra note 18, at 238-61, 408-20 (tables); ICHIHASHI, op. cit.
supra note 96, at 160-206; PAJUS, op. cit. supra note 29, at 145-54 (California only);
MILLIS, THE JAPANESE PROBLEM IN THE UNITED STATES 103-96 (1915); Rademaker,
The Japanese in the Social Organization of the Puget Sound Region, 40 AM. J. OF Soc.
338, 340-1 (1934).
101. Poll and Engstrand, supra note 100, at 357. In California it was estimated that
as high as 90% of the snap beans, celery, peppers, and strawberries were grown on Japa-
nese operated truck farms. TOLAN REPORT, 117.
102. See Powell, supra note 57, at 281-2; Poli and Engstrand, supra note 100, at 361-2.

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1947] THE ALIEN LAND LAWS: A REAPPRAISAL 1029

tive, more direct, and less drastic than foreclosure of opportunit

soil.103
Much has been said concerning absence of loyalty to the United States on
the part of the resident Japanese alien.104 The experience of investigators,
however, at the time of the war evacuation program, does not support this
conclusion. Loyalty and allegiance were not found to follow the clean-cut
lines of "alien" and "citizen."'05 As much disaffection was discovered among
the citizen nisei as among their alien parents.106 The only valid conclusion the
federal authorities could reach was that each case must be investigated indi-
vidually.107 The key to the whole situation, it is submitted, is found not in
formal analysis, but in the recurrent pattern of vague generalities about racial
inferiority, unassimilability, unwillingness to accept the responsibilities of
citizenship, oriental penchant for deceit, and eternal fidelity to the Emperor.
The early Japanese land cases, like the whole structure of constitutional race
discrimination of which they are a part, are the products of an ignorant and
unconsidered attitude toward colored peoples which urgently calls for re-
examination in the light of modern sociology and anthropology. The constitu-
tional ethnology of the earlier Supreme Court is antiquated folk-lore of a
primitive kind belonging with the economic shibboleths of Field and Peck-
ham.:18 If American law is to be cured of the deep-seated disease of racism,
the alien land laws must submit to the judicial scalpel.
A further apparent denial of equal protection, which extends to citizens as
well as aliens, seems to result from the recent California and Oregon amend-
ments'09 making it punishable to enter into any agreement for the purchasc
and sale of land if an ineligible alien is subsequently permitted to derive any
benefit whatsoever from the land.110 Thus if a vendor sells to a citizen-wife

103. California has had little trouble finding ways to control and regulate her agri-
cultural interests. CAL. STATS. 1933 c. 754, p. 1969, CAL. GEN. LAWS, Act 143a (Deering,
1944) (regulating harvesting and marketing of raisins, by restricting competition and
maintaining price levels) upheld in Parker v. Brown, 317 U.S. 341 (1943).
104. So runs the tenor of most anti-Japanese criticism. See THE ALIEN IN OUR
MIDST (Grant and Davison ed. 1930) passim; CALIFORNIA STATE BOARD OF CONTROL, op.
cit. supra note 29, at 181-91; Report of the Joint Fact-Finding Committee on Un-Am-eri-
can Activities in California, SEN. DAILY JOURNAL, June 14, 1945, pp. 3856-76, Cal. Legis.,
56th Sess. See discussion in MCWILLIAMS, PREJUDICE, 121-6.
105. See statements by Attorney General Warren (Cal.) and Mayor Earl Millikin of
Seattle. TOLAN REPORT, 142-3.
106. Ibid. See also Comment, 51 YALE L. J. 1316 (1942).
107. Id. at 147-51. See also Comment, 51 YALE L. J. 1316, 1337-8 (1942).
108. See Cohen, Book Review, 56 YALE L. J. 910, 912 (1946), and, generally items cited
note 104 supra.
109. Cal. Stats. 1943, c. 1059, § 7, CAL. GEN. LAWS Act 261, § lla, (Deering, 1944); Ore.
Laws 1945, c. 436, § 1, ORE. COMP. LAWS ANN. § 61-201 (Supp. 1944-5).
110. "§ lla. Leases, etc., in name of wife, child or other person, with allowances of
beneficial use to alien: Violation of acts: Punishment: Injunction proceedings. Whenever
leases, cropping agreements, or any other agreements to acquire, possess, enjoy, use, culti-
vate, occupy and transfer real property for farming or agricultural purposes or to transfer

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1030 THE YALE LAW JOURNAL [Vol. 56: 1017

or child of an ineligible alien, both vendor and vendee would b

criminal prosecution if the ineligible alien so much as lived on the f
supported by his wife or child from the agricultural earnings
position seems not only a denial of equal protection but also an a
the privileges and immunities guaranteed to all citizens.l' Just
policy seem singularly lacking for statutes which permit a sta
guise of its "police power" to legislate against a child's supportin
Presumptions and the Due Process Clause. Other sections of th
laws are vulnerable to attacks based on the unreasonableness of
presumptions. Though the courts thus far have upheld them,112
that upon reexamination today their constitutionality would not
action under the alien land laws, it will be recalled, proof of an
the land and of membership in an ineligible race creates a prim
sumption of ineligibility and places the burden of proving citiz
eligibility on the defendant.13 The statutes presume, in short, th
ber of an ineligible race is an ineligible alien. Contemporary st

in whole or in part the beneficial use of said lands are made in the name
child of any alien mentioned in Section 2 of this act, or made in the nam
person, and when any such alien mentioned in Section 2 of this act is then
allowed to remain or go upon the land, farm and cultivate same and enjoy dir
rectly the beneficial use of such said agricultural lands or obtains or has a
terest in or use of the proceeds received from the sale of the agricultural
on said lands, then any person signing or entering into any such agreemen
edge that any such alien shall be allowed or permitted to farm and cultivat
enjoy directly or indirectly the beneficial use of such agricultural lands o
ficial interest in or use of the proceeds received from the sale of the agr
produced on said lands or any person who allows or permits any such alien
cultivate such lands and enjoy directly or indirectly the beneficial use of su
lands or obtain or have a beneficial interest in or use of the proceeds rece
sale of the agricultural crops produced on said lands shall be guilty of v
terms and provisions of this act, and upon conviction thereof shall be punish
ner provided in Section 10a hereof, and the Attorney General or the distr
the proper county shall have the power to institute injunction proceedings
the people of the State of California against any and all such persons for
enjoining and restraining them from carrying on farming operations on a
lands in the State of California, under the terms and provisions of any su
ments, contracts, or leases, as hereinbefore provided." CAL. GEN. LAWS
(Deering, 1944).
111. U.S. CONST. AMEND. XIV, § 1.
112. People v. Osaki, 209 Cal. 169, 286 Pac. 1025 (1930), 3 So. CALIF. L.
HARV. L. REv. 121. See also Comment, 17 CALIF. L. REV. 575 (1929). But cf
California, 291 U.S. 82 (1934) (denial of due process when applied in a cr
113. "§9a. Citizenship must be proved by defendant. In any action or pro
or criminal, by the state of California, or the people thereof, under any of
of this act, when the proof introduced by the state, or the people thereof,
acquisition, possession, enjoyment, use, cultivation, occupation, or transf
property or any interest therein, or the having in whole or in part of the
thereof by any defendant, or any of such fact, and the complaint, indictmen
tion alleges the alienage and ineligibility to United States citizenship of su

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1947] THE ALIEN LAND LAWS: A REAPPRAISAL 1031

cate, however, that native-born Japanese outnumber aliens alm

one,114 a fact which should seemingly create a presumption the o
justify the presumption solely on the "balance of convenience" d
insufficient where a question of racial discrimination is involved.116
The Oregon 1945 amendments create two more presumptions
equally violative of due process. In the light of the frequency wit
in one county is owned by a voter in another, allowing proof of
an alien is not a registered voter of the county in which the land
create a prima facie presumption of ineligibility,11 would hard

the burden of proving citizenship or eligibility to citizenship shall thereupo

such defendant.
"§ 9b. Citizenship or eligibility must be proved by defendant. In any action or pro-
ceeding, civil or criminal, by the state of California, or the people thereof, under any of
the provisions of this act when the complaint, indictment or information alleges the alien-
age and ineligibility to United States citizenship of any defendant, proof by the state, or
the people thereof, of the acquisition, possession, enjoyment, use, cultivation, occupation or
transferring of real property or any interest therein, or the having in whole or in part the
beneficial use thereof by such defendant, or of any such facts, and in addition proof that
such defendant is a member of a race ineligible to citizenship under the naturalization laws
of the United States, shall create a prima facie presumption of the ineligibility to citizen-
ship of such defendant, and the burden of proving citizenship or eligibility to citizenship as
a defense to any such action or proceeding shall thereupon devolve upon such defendant.
"The legislature hereby declares that its purpose in adopting this section is not to
modify, limit or affect in any manner the provisions of section 9a of this act." CAL. GEN.
LAWS; Act 261, §§9a-b (Deering 1944).
The Oregon statute is substantially identical with §9b of the California law, ORE.
COMP. LAWS ANN. § 61-202 (Supp. 1944-5).
114. TOLAN REPORT, 91; Poli and Engstrand, supra note 100, at 352.
115. Such, by implication at least, has been the justification for the presumption-i.e.
information to prove citizenship being presumably more accessible to the defendant than
evidence to disprove it by the state. See People v. Osaki 209 Cal. 169, 192, 286 Pac. 1025,
1034 (1930), 3 So. CALIF. L. REV. 423 (1930). It is to be noted, however, that the statute
applies equally to the citizen-transferor as well as to the alien-transferee. Even conceding
that the fact of eligibility or citizenship may be more accessible to the alien, it is no more
known to the citizen than to the state. See Morrison v. California, 291 U.S. 82, 92-3
(1934).
116. The United States Supreme Court invalidated § 9a of the California act as applied
to a criminal proceeding, stating that the "convenience" test would not suffice. Morrison
v. California, 291 U.S. 82,94 (1934), Comment, 22 CALIF. L. REV. 420 (1934). But see Mor-
gan, Federal Constitutional Limitations Upon Presumptions Created by State Legislation
in HARVARD LEGAL ESSAYS 323, 346-51 (Pound ed. 1934). The Supreme Court has re-
cently seen fit to reject the "balance of convenience" test uncoupled with a rational con-
nection between the fact proved and the ultimate fact presumed. Tot v. United States, 319
U.S. 463, 467 (1943).
117. "§ 61-203-Lack of voting registration prima facie presumption of ineligibility. In
any suit or action, civil or criminal, brought pursuant to the provisions of the laws of this
state relating to the rights, powers and disabilities of aliens with respect to property,
proof that the defendant is not a registered voter in the county in which the land involved
in any such suit or action is located shall establish a prima facie presumption that such
person is ineligible to citizenship." ORE COMP. LAWS ANN. § 61-203 (Supp. 1944-5).

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1032 THE YALE LAW JOURNAL [Vol. 56: 1017

satisfy the test of a reasonable connection between that whic

that which is to be inferred. Declaring that any ineligible alie
land shall be presumed to own a lease-hold or other interests
seems equally unreasonable. The profusion of Japanese workin
the capacity of mere laborers vitiates completely, it is submitt
ableness of this presumption.1""

CONFLICT WITH THE "FEDERAL FIELDS"

The Power over Immigration and Naturalization. Power of the federal

government over immigration and naturalization, commonly labelled "exclu-
sive," is one which the states may not invade.120 In the case of the alien land
laws, totally apart from any conflict, each change by the federal government
in racial eligibility for citizenship effects a simultaneous change in the scope
of their application. Should Congress declare tomorrow that resident Japa-
nese aliens shall be eligible for citizenship, their disabilities as to ownership of
real property on the West Coast would be removed.121
It may well be suggested that state legislation so inextricably meshed with
Congressional standards draws near the line of invading the "federal field."
A Michigan law prohibiting "undesirable aliens," as defined by federal law,
from intra-state employment was for that reason declared unconstitutional.122
A Pennsylvania statute requiring compulsory registration of aliens was invali-
dated on similar grounds.123 To what extent the federal government may
retain power over resident aliens is as yet undelineated.124 Where civil

118. "§ 61-204-Presumption of ownership. Any alien ineligible to own any interest in
land in the state of Oregon who shall till, farm or work upon said land, or occupy the
same in any capacity whatsoever, shall be presumed to be the owner of a leasehold or some
interest in said land." ORE. COMP. LAWS ANN. § 61-204 (Supp. 1944-5).
119. There is no indication whether this presumption is to be considered conclusive or
rebuttable. Certainly if it were construed as an irrebuttable presumption, the statute
would appear violative of due process on its face. Probably, like the others, it is to be
considered merely a prima facie presumption, but, so conceding, it would seem to tran-
scend the test of reasonableness.
120. Henderson v. City of New York, 92 U.S. 259 (1875); the power over immigra-
tion was originally derived from the power over foreign commerce, Chy Lung v. Freeman,
92 U.S. 275, 280 (1875), whereas the power over naturalization stems from explicit lan-
guage in Article I, § 8, cl. 4 of the Constitution. As to the exclusive nature of Congress'
power over immigration see FREUND, POLICE POWER § 71 (1904); WASSERMAN, THE
CHALLENGE OF OUR IMMIGRATION LAWS 15 (1945).
121. Thus, the prohibition against Chinese and Filipinos owning real property disap-
peared with the Nationality Acts of 1943 and 1946 respectively. See notes 92-3 supra.
122. Arrowsmith v. Voorhies, 55 F.2d 310 (E. D. Mich. 1931). Cf. People v. Com-
pagnie Generale Transatlantique, 107 U.S. 59 (1882) (state alien passenger tax invali-
dated).
123. Hines v. Davidowitz, 312 U.S. 52 (1941). Cf. Ex parte Ah Cue, 101 Cal. 197, 35
Pac. 556 (1894) (state alien exclusion and registration act held invalid).
124. See Mr. Justice Holmes, dissenting in Keller v. United States, 213 U.S. 138, 149-
51 (1909). See also ROTTSCHAEFER, CONSTITUTIONAL LAW 376 (1939).

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1947] THE ALIEN LAND LAWS: A REAPPRAISAL 1033

liberties are involved, however, the Court might well extend

discriminatory land legislation, which precludes resident Japa
so much as working or living on a farm. Such a prohibition, b
nese farmers opportunity to earn their living, is, in effect,
from the state.125 This no state can do, once the federal go
admitted them to the country.
Conflict With the Treaty Power. Equally explicit in the ter
laws is the inapplicability of all prohibitions where an existing
otherwise.126 Even though such deference were not set out, t
would yield to provisions of the treaty.127 Under the guarant
of 1911,128 for example, state legislation subjecting Japanese
disabilities has been invalidated by the courts.129 Moreover, term
once incorporated into municipal legislation, are said to endu
the treaty itself has been abrogated.130
Though technically less controlling, congressional-executive
agreements, in the light of historical analysis, have been accor
to that of treaties as the "supreme law of the land."13l It is n
that the President may make an agreement with the mother c

125. To prevent the ineligible alien from engaging in agriculture in an

fashion, which the recent California amendments seek to do, would se
trance indistinguishable from that achieved by a flat prohibition again
employee. See Truax v. Raich, 239 U.S. 33, 42 (1915); Ex parte Moh
941, 943 (D. Mass. 1944). See also KONVITZ, op. cit. supra note 2, at 1
126. CAL. GEN. LAWS, Act 261, § 2 (Deering 1944); ORE. COMP. LAW
(1940); WASH. REV. STAT. § 10581 (b) (Remington, 1933).
127. "It is the declared will of the people of United States, that every
the authority of the United States, shall be superior to the constitutio
individual state; . . ." Ware v. Hylton, 3 Dall. 199, 237 (U.S. 1794);
Chirac, 2 Wheat. 259 (U.S. 1817); Hauenstein v. Lynham, 100 U.S. 4
froy v. Riggs, 133 U.S. 258 (1890); Missouri v. Holland, 252 U.S. 41
v. Seattle, 265 U.S. 332 (1924).
128. Treaty of Commerce and Navigation Between the United Stat
STAT. 1504 (1911). Though guaranteeing nationals of the contracting p
"carry on trade, wholesale and retail, to own or lease and occupy house
warehouses and shops, . . . to lease land for residential and commer
the treaty did not provide for the reciprocal right to own agricultural
Terrace v. Thompson, 263 U.S. 197, 222 (1923).
129. Asakura v. Seattle, 265 U.S. 332 (1924) (right to run a barber
Naka's License, 9 Alaska 1 (D. Alaska 1934) (right to purchase liquor
130. In Palermo v. Stockton Theatres, 76 Adv. Cal. App. 26, 172 P.2
court held that, even though the war with Japan had abrogated the treaty
the treaty permitting leasing of non-agricultural land to ineligible aliens h
of the local law. See also Magnani v. Hartnett, 257 App. Div. 487, 1
(1939) aff'd 282 N.Y. 619, 25 N.E.2d 395 (1940) (provisions of the Ja
still in force).
131. See United States v. Belmont, 301 U.S. 324, 331-2 (1937) (presidential compact
to be given equal effect to a treaty with respect to conflicting state law); United States v.
Pink, 315 U.S. 203, 229-30 (1942) (presidential agreement with Russia took precedence

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1034 THE YALE LAW JOURNAL [Vol. 56: 1017

ting reciprocal ownership of land. Such an agreement would

alien land laws then existing.
The status of the alien under pre-UN international law
guaranteed by the amorphous "minimum standards,"'32 which
were said not to include the right to acquire real property.133
tion no longer obtains. By the United Nations Charter, sign
have resolved to combine their efforts to promote social prog
standards of life, to practice tolerance, and to live together in pe
55c, more specifically, requires the fostering of:

"universal respect for, and observance of, human rights an

mental freedoms for all without distinction as to race, sex
or religion."'l5

Article 56 continues with the following implementing provisio

"All Members pledge themselves to take joint and separa
in cooperation with the Organization for the achievemen
purposes set forth in Article 55."136

With declaration of policy in language so unambiguous it is a

that this document-having the force of a treaty-may be inc
the body of American municipal law.137 "Joint and separate
ent with these purposes would certainly demand invalidation o
alien land laws. Whether the provisions of Articles 55 and 56
Article 2(7), prohibiting intervention in matters essential
domestic jurisdiction of any state," is subject to controversy
least scholarly authority, however, for the proposition that they

over New York state law). See generally McDougal and Lans, Treati
sional-Executive or Presidential Agreements: Interchangeable Instrum
Policy, 54 YAiL L.J. 181 and 534 (1945); see also Jessup, The Litvinoff
the Belmont Case, 31 AM. J. INT. L. 481 (1937).
132. GIBSON, op. cit. supra note 2 at 61, 154. See, generally, Borchard
Standard" of the Treatment of Aliens, 38 MICH. L. REV. 445 (1940).
133. FREEMAN, THE INTERNATIONAL RESPONSIBILITY OF STATES FOR
rICE 512 (1938). Authorities cited Id. at 513 n. 1.
134. CHARTER OF THE UNITED NATIONS, Preamble (1945). See also
American Conference on Problems of War and Peace, Resol. xli, Reprin
the U.S. Delegation (recommending that the American Republics ". .. ma
to prevent . . . all acts which may provoke discrimination among indiv
race or religion.")
135. CHARTER OF THE UNITED NATIONS, Art. 55(c) (1945). See al
136. Id., Art. 56.
137. Such a probability is not without judicial precedent. In Re Drummond Wren,
[1945] O.R. 778, a Canadian court held a restrictive covenant against Jews void as against
public policy, relying in part on the declarations of the Charter to which Canada was a
signatory. Id. at 781.
138. See Kelsen, Limitations on the Funcfions of the United Nations, 55 YALE L. J.
997, 1006-7, 1007 n. 10 (1946). See also Foreword by Douglas, id. at 868.

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1947] THE ALIEN LAND LAWS: A REAPPRAISAL 1035

CONCLUSION

Time and circumstance have rendered non-existent whateve

have originally justified the alien land laws. Fancied fears of
low horde," inordinate anxiety over alien ownership of all f
chimney-corner whisperings of generic disaffection for the A
have little basis in fact today. At bottom, the land laws are
prejudice abundantly manifest.139 Preservation of these discr
utes, furthermore, has dangerous overtones: the resident alien is
day; the Japanese-American citizen may well be their scapeg
"It is generally impossible to localize the infection."l40 To
west coast states themselves will undergo a change of front
quixotic. National action by either courts or Congress will soo
Appearances indicate that court action will come first.142
Court determination, however, should neither preclude nor
sional activity. The time is auspicious to reassess and reformu
immigration and naturalization policy.143 The phrase "free
in 1790 for the specific purpose of excluding slaves,44 st
naturalization standards. The courts have compounded confus
that "white race" is not to be determined by scientific or ethnic
the inconclusive test of "common understanding."145 A Dist

139. "It is expected that ultimately there won't be a parcel of Jap-ow

Los Angeles," Los Angeles Times, Dec. 5, 1943, quoted in MCWILLIAMS,
In 1944 an attempt was made to submit to popular initiative in Californ
ing Japanese aliens from owning any type of property whatsoever, but th
to get sufficient signatures. New York Times, Sept. 10, 1944, p. 22, col
Sugihara, I Don't Want to Go Back, 42 COMMONWEAL 330 (1945) an
PREJUDICE, passim.
140. Oppenheimer, The Constitutional Rights of Aliens, 1 BLL OF R
(1941).
141. See Sugihara supra note 139 at 330. For a discussion of variou
cerning Federal control of race relations see Collier and Padover, An In
Democracy, COMMON GROUND Autumn, 1943 p. 3; Biddle, et al., Are R
Business of the Federal Government, Id. Winter, 1944, p. 3; and Shepar
Ethnic Democracy, Id. Spring, 1944, p. 3.
142. Certiorari has been granted in the Oyama case discussed supra pp
14 supra.
143. See generally, The Recent Congressional Hearings on Immigration and Naturali-
zation Problems, 3 IMMIG. AND NAT. SER. Mo. REV. 249 (1946).
144. 1 STAT. 103 (1790). See In re Rodriguez, 81 Fed. 337, 349 (W.D. Tex. 1897);
KOHLER, IMMIGRATION AND ALIENS IN THE UNITED STATES 392-8 (1936); MCWILLIAMS,
PREJUDICE 48-9. The term "free white" was omitted from the revised statute of 1875 but
restored immediately thereafter by the Act to Correct Errors and Supply Omissions.
KOHLER, supra at 394; Wigmore, American Naturalization and the Japanese, 28 AM. L.
REV. 818 (1894).
145. United States v. Bhagat Singh Thind, 261 U.S. 204, 209-10, 214-5 (1923) ("free
white person" means "caucasian" only as word is popularly used); Ex parte Mohriez, 54
F. Supp. 941 (D. Mass. 1944). The first Supreme Court declaration of ineligibility of
Japanese was in Ozawa v. United States, 260 U.S. 178 (1922). The courts have found

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1036 THE YALE LAW JOURNAL [Vol. 56: 1017

California once said that "white" meant "Caucasian"146 and this was later
embalmed in precedent by Mr. Justice Sutherland.247 It seems highly desir-
able in the interests of rational government and international comity to aban-
don completely such fugitive standards.148
It is to be hoped that the Supreme Court, in reconsidering the Pacific Coast
alien land legislation, will not limit itself to striking down scattered sections of
the laws,149 but will invalidate the whole scheme on broad grounds. Within
the last decade the Court has felt constrained to scrutinize all racial laws with
care and to indicate that classification based on race alone is per se a denial of
equal protection.150 Terrace v. Thompson should prove no stumbling block,
for changing conditions can invalidate legislation once held valid.15' The
Chinese may own land as of 1943; the Filipinos and East Indians since 1946;
the resident Japanese alien alone is the object of the discrimination. No mat-
ter how colorable the alleged intent-framed in the language of control over
"property"-the alien land laws are legislation of racism152 which the court
can little afford to sanction.

themselves in inextricable confusion when forced to determine eligibility of aliens of the

half blood. See In re Knight, 171 Fed. 299 (E.D.N.Y. 1909) (Father, English; mother,
half Japanese and half Chinese-ineligible); In re Cruz, 23 F. Supp. 774 (E.D.N.Y. 1938)
("African descent" means an "affirmative quantity" of African blood) ; see generally Mc-
Govney, Naturalization of the Mixed-Blood-A Dictum, 22 CALIF. L. REV. 377 (1934);
KOHLER, op. cit. supra note 144 at 399-405.
146. Judge Sawyer in In re Ah Yup, 1 Fed. Cas. 223, No. 104 (C.C.D. Cal. 1878).
147. Ozawa v. United States, 260 U.S. 178, 197 (1922); United States v. Bhagat Singh
Thind, 261 U.S. 204, 214-5 (1923).
148. See Ex parte Mohriez, 54 F. Supp. 941, 943 (D. Mass. 1944); In re Mudarri,
176 Fed. 465, 467 (C.C.D. Mass. 1910); MCWILLIAMS, PREJUDICE 290-1.
149. Certainly the recent sections added to the California and Oregon laws (notes 110,
113 supra) would seem invalid. Similarly, the Court could find that the effect of the laws
as applied to citizens, as in the Oyama case supra, may be a denial of privileges and im-
munities. See Petition for Writ of Certiorari, pp. 8-17, Oyama v. California, 15 U.S.L.
WEEK 3376 (April 7, 1947). To invalidate only the most offensive sections, however,
would leave the essential structure of the legislation still intact.
150. See Korematsu v. United States, 323 U.S. 214, 216 (1944) ("Pressing public
necessity may sometimes justify the existence of such restrictions; racial antagonism never
can."); Smith v. Texas, 311 U.S. 128, 130 (1940).
151. See Nashville, C. & St. Louis Ry. v. Walters, 294 U.S. 405, 415 (1935); Chastle-
ton Corp. v. Sinclair, 264 U.S. 543, 547 (1924); Dahnke-Walker Milling Co. v. Bondu-
rant, 257 U.S. 282, 289 (1921).
152. See Mr. Justice Murphy, dissenting in Korematsu v. United States, 323 U.S.
214, 242 (1944).

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